Violating the Constitution that created it

The political left’s responses to Donald Trump’s surprise Electoral College victory has led to many proposed “improvements” in that institution, ironically illustrating one of the main issues determining the outcome — what philosophy would guide judicial appointments.

Trump indicated that he would appoint justices that would honor the Constitution as the supreme law of the land. That would comport with our founders, expressed in Federalist 78, that “It will be the duty of the judicial tribunals … to guard the Constitution and the rights of individuals.” That was at odds with Hillary Clinton’s intent to appoint “living Constitution” jurists, who prefer subsequent judicial interpretations they like over the Constitution itself, whenever they conflict, effectively re-writing the Constitution.

So left-leaning legal scholars have illustrated their preferred means of Constitutional redefinition to produce their desired results via Electoral College “reform” proposals.

Kenneth Jost, author of the Supreme Court Yearbook, argues, “The electoral college is enshrined in the Constitution, but that doesn’t make it constitutional.” He arrives at that internally inconsistent conclusion because “The Supreme Court established the principle — ‘one person, one vote’ — in 1964.” But that is not in the Constitution. It is a much later court invention, now being used retroactively to define part of the Constitution unconstitutional. The fact that our founders did not find that so when they wrote and adopted the Constitution is simply ignored.

University of California, Irvine, Law School Dean Erwin Chemerinsky, a leading liberal Constitutional interpreter, takes the same theme further. He argues that “the text of the Constitution is modified by its amendments,” so the Electoral College allocation of votes should be declared unconstitutional as violating the constitutional amendments [citing the 5th Amendment] that guarantee equal protection of the law.” This, despite the fact that adopters of the Bill of Rights in 1791 clearly found no unconstitutionality in the Electoral College from the 5th Amendment. Neither were earlier examples of popular vote winners who lost in the Electoral College asserted to be unconstitutional. Chemerinsky, as Jost, builds his case not on the Constitution, but upon “The Supreme Court long has held,” followed by some ruling that twists the Constitution and can now be interpreted as at odds with the Electoral College, plus the claim that the redefined constitutional meaning should now trump the Constitution.

Neither of these prominent challenges to the Electoral College relies on the Constitution. Arguments are instead grounded in previous “The Supreme Court has held” rulings that deviated from consistency with the clearly understood original meaning of the Constitution. This is, in fact, such a common approach in “living Constitution” jurisprudence that scholars have even compiled “worst of” lists, such as Robert Levy and William Mellor’s The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom.

Should America be faithful to the Constitution, and the sharply limited federal government of enumerated powers it created to protect our freedoms from abuse at its hands, as the earlier, controlling precedent, or should we accept precedents that have already warped it almost beyond recognition? If the Constitution’s meaning is to be so easily changed (but only when the left finds it amenable to their ends) that even “emanations from penumbras” around other rights can effectively rewrite it, why did our founders spell out such a difficult process for changing it? And why should we respect precedents from 1964 or others years long after America’s establishment, on the basis that the Constitution must be upheld, when those precedents distorted it rather than upheld it? Surely that Alice in Wonderland approach to constitutional meaning is too weak a reed to throw out the Electoral College as violating the Constitution that created it.

Gary M. Galles is a Professor of Economics at Pepperdine University, a Research Fellow at the Independent Institute, an Adjunct Scholar at the Ludwig von Mises Institute and a member of the Foundation for Economic Education Faculty Network. His books include Lines of Liberty (2016), Faulty Premises, Faulty Policies (2014) and Apostle of Peace (2013).